All businesses should have anti-bullying and harassment policies in place – and make sure they’re not just seen as ‘tick box’ exercises, says Sam Lawn, Associate Solicitor, Charles Russell Speechlys LLP 

Bullying has risen to the forefront of the media in recent months, with high profile cases receiving huge coverage – including those of prominent politicians Gavin Williamson, Priti Patel and Dominic Raab.

But how should pharmacy owners approach allegations of bullying within their businesses? The position is far from static and is extremely fact-sensitive in each case. This article sets out some frequently asked questions to consider when dealing with any such allegations.

What is bullying?

Bullying does not have a statutory definition under any piece of employment legislation. However, whilst an employee alleging bullying within a pharmacy business does not directly have a statutory claim, they may have potential employment law claims stemming from the ‘bullying’ conduct. When considering claims, an employment tribunal will not consider whether bullying has taken place, but whether the specific statutory requirements of each claim have been met (see below).

The lack of a statutory definition of bullying means that actions falling within the ambit of bullying are wide-reaching. For example, it is possible that anything from a subversive raise of an eyebrow, an aggressive smack of the table when evaluating an employee’s performance or an exclusion from team social events could amount to bullying if supported by factual circumstances.

Acas describes bullying as: “Unwanted behaviour from a person or group that is either: (1) offensive, intimidating, malicious or insulting; or (2) an abuse or misuse of power that undermines, humiliates, or causes physical or emotional harm.”

There is significant cross-over with the statutory definition of ‘harassment’ under the Equality Act 2010, which is described as “unwanted conduct related to a protected characteristic”, which “has the purpose or effect of violating the individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment.” 

Whilst these definitions are a helpful guide, what does this grey area mean for pharmacy businesses? 

Bullying and harassment can take many forms, and a tribunal will consider the position from the perspective of the affected employee. In any claim, it is not relevant that the pharmacy’s HR person would not subjectively consider that the conduct would amount to harassment, but the question would be first whether the perpetrator’s purpose was to have the effect described above (and linked to a protected characteristic). If purpose is not established, the question is then whether it in fact has the effect upon the individual. A tribunal will consider the individual’s perception, the surrounding circumstances of the case and whether it is reasonable for the conduct to have that effect.

Can an employee bring tribunal claims? 

Bullying conduct may enable an employee to bring a number of separate employment law claims including:

• Harassment– linked to a protected characteristic
• Sexual harassment
• Direct discrimination–where an individual is treated less favourably due to a protected characteristic
• Constructive unfair dismissal– where an individual has been treated so poorly that they are able to resign and claim that the conduct rendered them as dismissed. This will typically only apply where the individual has at least two years’ service
• Victimisation–where an individual is subjected to detriment because they raised complaints about their treatment, which is linked to a protected act, such as bringing a discrimination claim, complaining about harassment or being involved in someone else’s discrimination claim
• Personal injury from serious bullying, which resulted in psychiatric injury. In order to bring a claim under the Equality Act, ‘bullying’ must be linked to a protected characteristic, as defined in the Equality Act. These are: age; disability; gender reassignment; marriage and civil partnership; pregnancy and maternity; race; religion or belief, sex or sexual orientation.

This means that if the employee wishes to bring a claim under the Equality Act, the bullying cannot be linked to a characteristic outside of this list if a valid claim is to be brought.

How can I improve the culture in my business?

Whilst anti-bullying and harassment policies are useful tools for businesses to adopt and refer to in preventing bullying, they are not the only tools that should be relied upon.

In cases of harassment involving a protected characteristic, employers may seek to rely upon the ‘reasonable steps’ defence in a tribunal. This allows an employer to defend a claim against them, despite harassment taking place, where it can be shown that the employer has taken ‘all reasonable steps’ to prevent the relevant employee from ‘doing anything of that description’. This is a notoriously high bar for an employer to meet.

Having anti-harassment training policies in place is patently not sufficient and pharmacy owners should ensure that policies are enforced via disciplinary action where appropriate, and effectiveness is monitored.

Certainly, we would encourage pharmacy owners to ensure that any training put in place should not be a tick box exercise and should actively aim to prevent harassment taking place.

The above is a general overview and we recommend that independent legal advice is sought for your specific concerns. If you require further information in relation to points raised in this article, please contact Sam Lawn, a solicitor and member of the Pharmacy Transactions Employment Team at Charles Russell Speechlys LLP. Sam can be contacted at sam.lawn@crsblaw.com